IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF MARCH, 2025
BEFORE
THE HON’BLE MR JUSTICE M.G.S. KAMAL
WRIT PETITION NO. 11466 OF 2020 (GM-CPC)
BETWEEN:
- SMT USHA BASAVARAJ
W/O AJAY GOPAL
AGED ABOUT 51 YEARS
R/O 340, 2ND MAIN ROAD,
R.T NAGAR, BENGALURU – 560 024.
REP. BY HER G.P.A HOLDER
SRI. BABU DHAMMANAGI.
- SMT. MANGALA BABU DHAMMANGI
W/O SRI BABU DHAMMANGI
AGED ABOUT 56 YEARS
R/O NO. 137, RAILWAY PARALLEL ROAD,
KUMARA PARK WEST
BENGALURU – 560 020. …PETITIONERS
(BY SRI. M G KUMAR, ADVOCATE)
AND:
SMT P SESHUKUMARI
W/O P.S. RAO
AGED ABOUT 65 YEARS
R/O NO. 19/A, VENKATADRI NAGAR
5TH MAIN ROAD, HEBBAL
BENGALURU – 560 024.
…RESPONDENT
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 22.07.2019 IN O.S.NO.1787/2006, DISMISSING THE SUIT FOR NON-PROSECUTION PASSED BY THE SENIOR CIVIL JUDGE AND JMFC DEVENAHALLI VIDE ANNEXURE-J AND THE ORDER DATED 13.02.2020 PASSED ON PETITIONERS’ I.A. U/S 151 OF CPC FOR RECALLING THE DISMISSAL OF THE SUIT VIDE ANNEXURE-M AND RESTORE THE SUIT O.S.NO.1787/2006.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON’BLE MR JUSTICE M.G.S. KAMAL
ORAL ORDER
Petitioners, the Plaintiffs in O.S. No.1787/2006 are before this Court being aggrieved by the order dated 13.02.2020 by which their application filed under Section 151 Code of Civil Procedure seeking to recall the order dated 22.07.2019 passed by the Trial Court dismissing the suit for non-prosecution has been rejected.
2. The above suit in O.S. No.1787/2006 had been filed by the Plaintiffs for the relief of permanent injunction restraining the Defendant/Respondent herein or anyone claiming through or under her from interfering with second Plaintiff’s peaceful possession and enjoyment of the Suit Schedule Property and rebuild and restore the western side demolished compound wall of the Plaintiff in the Suit Schedule Property. Written Statement has been filed. Issues have been framed. Evidence of the Plaintiffs has been completed. At the stage when the matter was set down for cross examination of Plaintiffs’ witness an application under Order VI Rule 17 CPC was filed by the Plaintiffs seeking amendment to the plaint bringing on record certain subsequent events. Said application was filed on 17.03.2015. Thereafter the matter was being posted for hearing on the said application. On 22.07.2019 when the matter was posted for hearing on the said application, it appears Plaintiffs and their counsel remained absent. Taking note of the daily order sheet of suit and pendency of the matter the Trial Court proceeded to dismiss the suit holding that the Plaintiffs were not interested in prosecuting the matter. On 23.07.2019 i.e., on the very next day Plaintiffs filed application under Section 151 CPC seeking to recall the said order dated 22.07.2019 and to restore the suit. Said application is accompanied by a memorandum of facts of the counsel representing the Plaintiffs. Objections to the said application was filed. By the impugned order the Trial Court dismissed the said application solely on the ground that the said application was not accompanied by an affidavit, thereby drawing inference that the Plaintiffs had not appeared on the said date. Accordingly held that Plaintiffs did not deserve any opportunity and suit could not be restored. It is this order which is in question in this writ petition.
3. Learned counsel for Petitioners taking this Court through the records submits that in terms of provisions of Order XVII Rule 2 Code of Civil Procedure on the date fixed for hearing if a party is absent the Court would have two options. One to proceed under the provisions of Order IX and/or to proceed with the matter on merits. He submits in the instant case Plaintiffs have already led evidence and sufficient material being available on record the trial Court ought to have proceeded on merits which is the second option provided under the said provision. Further even otherwise when the matter has been set down to hear on application in I.A.19/2015 filed by the Plaintiffs seeking amendment of the plaint, all that Court ought to have done was to pass orders on the said application and thereafter adjourn the matter for consideration on main. The Trial Court therefore, he insists, grossly erred in dismissing the suit without adverting to the pending application. Thus, he submits that the order of dismissal was neither in terms of Order IX or Order XVII CPC. Therefore, application under Section 151 CPC was filed. He submits reasons assigned by the Trial Court to dismiss the application namely non-filing of affidavit is also incorrect and contrary to provisions of law. On these three counts the Trial Court erred in non-suiting the Plaintiff requiring interference at the hands of this Court. He further submits that a counter suit has been filed by the respondent in O.S.No.1456/2006 against the Plaintiff No.1 herein in respect of the very same subject matter and said suit after completion of trial is set down for final arguments. He submits that no prejudice would be caused if the order of dismissal of suit for non-prosecution impugned in this petition is recalled.
4. Though notice has been issued to the Respondent same has returned with endorsement “No such person”. Since the issue is one pertaining to dismissal of suit for non-prosecution and no rights of the parties is being determined, matter is taken up for disposal.
5. Heard and perused the records.
6. As rightly pointed out by the learned counsel for Petitioners when the matter was set down for hearing on application in I.A.19/2015 seeking amendment of the plaint there was no requirement for the Trial Court to have dismissed the suit for non-prosecution. It could have passed appropriate order on the said application which is not emanating from the records. The impugned order reads as under:
“Perused case papers. It is a matter of 2006. This Court is having total pendency of 8000 cases. On perusal of order sheet it appears that Plaintiff is not prosecuting the case regularly. Wherefore there is no ground to adjourn the case. It holds that Plaintiff is not interested to prosecute the matter. Hence suit of the Plaintiff is dismissed for non-prosecution”.
7. Clearly there is an error in the order and in exercise of jurisdiction by the Trial Court inasmuch as the said order do not fall either within the provisions of order IX or Order XVII Rule 2 CPC.
8. Subsequent order passed on the application filed by the Petitioners under Section 151 reads as under:
ORDERS ON I.A. U/Sec.151 of C.P.C.
“Advocate for Plaintiff filed this application U/Sec.151 of C.P.C. and prays to restore this suit. This application is not supported by the affidavit of Plaintiff, but it is supported by memorandum of fact.
2. Heard the argument and perused the records.
3. Plaintiff filed this suit for the relief of declaration and permanent injunction. Plaintiff is not appearing before this court. This court has given number adjournments. The suit is of the year 2005 and renumbered in the year 2006. Wherefore this court dismissed this suit on 22-07-2019 for non-prosecution.
4. On 23-07-2019 the learned counsel for Plaintiff filed present application along with memorandum of fact. It is well settled law that such application requires the affidavit Plaintiff. Filing of memorandum of facts clearly shows that Plaintiff is not interested in this case. It shows that on the said date also Plaintiff not appeared before this court. When such being the case question of giving opportunity and restoring the suit is not proper. Hence application is rejected”.
9. The only reason for rejection of the said application is that the same is not accompanied by an affidavit. The memorandum of facts enclosed to the application would reveal learned counsel appearing for the petitioners/plaintiffs had brought to the notice of the Court regarding pendency of the application in I.A.19/2015 filed under Order VI Rule 17 CPC. Impugned order does not advert to the same.
10. In that view of the matter the Trial Court ought to have considered the application instead being too technical. Even otherwise, it was inappropriate to reject the application for the aforesaid reasonings inasmuch as filing of memorandum of facts is permissible even under the provisions of Civil Rules of Practice as facts and circumstances were within the knowledge of the counsel appearing for the Plaintiffs.
11. Relevant to refer to Sub Rule (2) of Rule 18 of Karnataka Civil Rules of Practice which reads as under:
“18(2)- All facts, on which an applicant relies for making the prayer or obtaining the relief sought in the application, shall be set out in an affidavit accompanying the application. Where, however, the facts on which the application is based appear from the records of the case in the Court or relate to any act or conduct of the applicant’s pleader himself, the Court may permit a memorandum of facts signed by the applicant’s pleader to be filed instead of an affidavit:
[Provided that it shall not be necessary to file any affidavit but only a memorandum of facts signed by the pleader in interlocutory applications seeking any relief other than the reliefs of temporary injunction, attachment, arrest, appointment of guardian or the appointment of receiver or amendment of a pleadings].”
12. Clearly under the facts and circumstances of the case there was no requirement of filing an affidavit as sought to be insisted by the trial Court.
For the aforesaid reasons, petition is allowed. The impugned orders dated 22.07.2019 at Annexure-J and 13.02.2020 at Annexure-M are set aside. Application under Section 151 of Code of Civil Procedure is allowed. Suit in O.S.No.1787/2006 is restored. The Trial Court to proceed in accordance with law.
Sd/-
(M.G.S. KAMAL)
JUDGE